Girl wins right to seek 'divorce' from adoptive parents: Ruling by the Court of Appeal in the case of 13-year-old is seen as a test of the Children Act
It is believed to be the first time that a child has sought to use the Children Act to 'divorce' adoptive parents.
After a breakdown last year with the adoptive family, who had cared for her since she was seven, the girl - referred to only as 'C' - has lived with foster parents. She now wants to live with an aunt (her mother's sister) at her grandparents' house.
Last November, a judge in Bristol accepted that she was of sufficient maturity and understanding to seek such a residence order, under the Children Act, which came into force 18 months ago.
However, her adoptive parents, believing that their relationship can be mended, challenged the case in the High Court, and won a ruling which made the child a ward of court.
This meant that, in order for the girl's wishes to be fulfilled, the Official Solicitor - appointed to represent her under wardship proceedings - would first have to decide that the move was in her best interest. Only then would she be free to pursue her claim through her own lawyers.
But in a case, seen as a test of the powers of the new Act, against the old wardship proceedings which allow children few legal rights, three appeal court judges discharged the wardship proceedings.
Lord Justice Waite said it was understandable that a judge should seek to provide 'C' with the most objective representation - that of the Official Solicitor. But he added: 'I have not been able to discern in any of the circumstances of this case . . . any factor which would justify giving 'C' the status - an exceptional status under the modern law as it must now be applied - of a ward of court.'
But while getting rid of the need for separate wardship proceedings, yesterday's ruling does not give children unfettered rights.
The appeal judges, led by Sir Thomas Bingham, Master of the Rolls, said that ultimately it was up to the judge hearing a case under the Children Act to decide if the child was mature enough to make up his or her own mind and to instruct solicitors, or whether there was a need of further independent advice.
However, Lord Justice Waite said: 'I would hope and expect the instances where a challenge is directed to a solicitor's view of his minor client's ability to instruct him will be rare . . .'
'C' was not in court for yesterday's ruling. Her legal fight to live with her aunt will be resumed in Bristol.
Law report, page 29
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